KOWALSKI v. FIUTOWSKI

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KOWALSKI

v.

FIUTOWSKI

August 17, 2001

Nos. 220783 and 223155

ROBERT KOWALSKI, as Personal Representative of
the Estate of KATARZYNA BINISZIEWICZ-KOWALSKI, Deceased,

Plaintiff-Appellee,

and

MICHIGAN DEPARTMENT OF COMMUNITY HEALTH,

Intervening Plaintiff,

v.

ZDZISLAW FIUTOWSKI, M.D.,

Defendant-Appellant,

and

RAGAA S. ELDIN, M.D.,
Individually,

and d/b/a HAMTRAMCK
WOMEN’S CLINIC,

Defendant.

RICA CASTRO, as Personal Representative of the
Estate of ELIKA CASTRO-NAZARENO, Deceased,

In these consolidated medical malpractice
cases, defendants appeal from the trial court’s denial of
their motions to set aside entry of default. In each case, the
trial court held that MCL 600.2912e mandated a default for
defendant’s failure to timely file an affidavit of
meritorious defense. We reverse and remand.

A trial court’s ruling on a motion to set
aside an entry of default is reviewed by this Court for abuse of
discretion. Alken-Ziegler, Inc v Waterbury Headers Corp,
461 Mich 219, 227; 600 NW2d 638 (1999). Except when grounded on
lack of jurisdiction over the defendant, a motion to set aside a
default or a default judgment should be granted only if good
cause is shown and an affidavit of facts showing a meritorious
defense is filed. MCR 2.603(D)(1); Alken-Ziegler, Inc, supra
at 229. Good cause sufficient to warrant setting aside a default
may be shown by a substantial irregularity or defect in the
proceeding upon which the default is based or a reasonable excuse
for failure to comply with the requirements that created the
default. Alken-Ziegler, Inc, supra at 233. In addition,
the court may set aside an entry of default in accordance with
MCR 2.612. MCR 2.603(D)(3).

Both defendants argue that the entry of default
itself comprised a substantial defect or irregularity in the
proceeding sufficient to show good cause. Defendants rely on the
absence of a specific remedy in the statute, and assert that
because the courts are not expressly permitted to enter a
default, they therefore are prohibited from so doing. However, an
entry of default does not create a defect in the proceedings
regardless of the construction of the statute. If plaintiffs are
correct and the statute mandates a default, then obviously
defendants’ arguments fail. On the other hand, if the
statute prohibits entry of default, then the trial court
made a mistake of law. In that case, the trial court’s
mistaken belief that it had to enter a default is not a
procedural error but a legal error. Likewise, if the statute
neither mandates nor prohibits a default but allows the trial
court discretion in fashioning a remedy, then the entry of
default is not a "substantial defect or irregularity in the
proceeding"; rather, the court’s failure to exercise
its power of discretion constitutes a clear abuse of discretion. Komejan
v Suburban Softball, Inc, 179 Mich App 41, 49; 445 NW2d 186
(1989). We thus hold that, under any interpretation of the
statute, the entry of default was not a substantial irregularity
or defect in the proceeding.

Both defendants also argue that they had
"reasonable excuses" for failing to file their
affidavits on time. However, the trial court did not explore the
matter because of its belief that it had no choice but to enter a
default. While the record available to us may not appear to
support "reasonable excuses," the fact that the trial
court denied the parties the opportunity to develop the record
renders premature any conclusion on the subject.

The question, then, in these cases is whether
the trial court erred in believing that it was required to enter
a default in a medical malpractice case where the defendant
failed to file an affidavit of meritorious defense within the
time limit required by statute. We review a question of statutory
interpretation de novo. Wilhelm v Mustafa, 243 Mich App
478, 481; 624 NW2d 435 (2000). The relevant statute, MCL
600.2912e, reads in pertinent part:

(1) In an action alleging medical
malpractice, within 21 days after the plaintiff has filed
an affidavit in compliance with section 2912d, the
defendant shall file an answer to the complaint. Subject
to subsection (2), the defendant or, if the defendant is
represented by an attorney, the defendant’s attorney
shall file, not later than 91 days after the plaintiff or
the plaintiff’s attorney files the affidavit
required under section 2912d, an affidavit of meritorious
defense signed by a health professional who the
defendant’s attorney reasonably believes meets the
requirements for an expert witness under section 2169.

The only exception to the time limits in
subsection (1) is given in subsection (2), which applies if the
plaintiff fails to allow access to medical records as required
under MCL 600.2912b(6); that exception does not apply in these
cases. The use of the word "shall" indicates that the
requirement of the statute is mandatory. Wilhelm, supra at
482. Therefore, a defendant violates the statute by failing to
file an affidavit of meritorious defense within ninety-one days
of the plaintiff filing an affidavit of merit.

The next question is what sanction or remedy is
appropriate for the violation. MCL 600.2912e is silent in regard
to a sanction for noncompliance with the ninety-one-day
provision, and nothing in that statute expressly permits or
forbids an extension of time. In contrast, the statutory
provision governing a plaintiff’s affidavit of merit, MCL
600.2912d, is silent concerning possible sanctions, but it
expressly allows a plaintiff to have an additional twenty-eight
days in which to file the affidavit of merit if good cause is
shown.[1] The previous version of MCL 600.2912e, which was
amended in 1993,[2] provided that the trial court could, in its discretion,
strike the defendant’s answer and enter a default if the
defendant failed to comply with the requirements of that section
of the statute. Wilhelm, supra at 484. This provision was
eliminated when the statute was amended in 1993; also eliminated
was a provision allowing a defendant to extend time for good
cause.

The rules of statutory construction are
well established. The foremost rule, and our primary task
in construing a statute, is to discern and give effect to
the intent of the Legislature. This task begins by
examining the language of the statute itself. The words
of a statute provide "the most reliable evidence of
its intent…." If the language of the statute is
unambiguous, the Legislature must have intended the
meaning clearly expressed, and the statute must be
enforced as written. No further judicial construction is
required or permitted. Only where the statutory language
is ambiguous may a court properly go beyond the words of
the statute to ascertain legislative intent. (Citations
omitted).

The language of MCL 600.2912e unambiguously
does not require or recommend any particular sanction. That does
not mean, however, that no remedy is available. Where a statute
creates a right or duty not found in the common law, the remedies
provided in the statute are exclusive unless they are plainly
inadequate or where the act provides no adequate means of
enforcement of its provisions. General Aviation, Inc v Capital
Region Airport Authority, 224 Mich App 710, 715; 569 NW2d 883
(1997). Since MCL 600.2912e provides no remedy, this Court may
infer one. Id.

In response to defendants’ arguments that
the sanction provision omitted by the 1993 amendment should be
presumed to reflect a change in the intent of the Legislature, People
v Wright, 432 Mich 84, 92; 437 NW2d 603 (1989), citing Lawrence
Baking Co v Unemployment Compensation Comm, 308 Mich 198,
205; 13 NW2d 260 (1944), we note first that we are required to
begin with the statute as written. Sun Valley Foods,
supra. The Legislature chose to delete the sanction provision
rather than rewrite it, indicating that it intended to leave the
determination of a proper remedy to the discretion of the court.
Second, the amendment also omitted the provision permitting an
extension of time, indicating the Legislature’s intent to
require strict adherence to the time limit. We cannot give weight
to one change without giving weight to the other; the overall
effect of the amendment is to compel compliance with the stated
time limits but to allow the courts to assess the facts and
fashion an appropriate remedy. Robinson v City of Detroit,
462 Mich 439, 459; 613 NW2d 307 (2000). We therefore hold that
MCL 600.2912e neither prohibits nor requires a default when the
defendant fails to timely file its affidavit of meritorious
defense.

We next turn to the court rules to consider
whether the trial court had the power to enter a default. MCR
2.603(A) authorizes the court to enter a default of a defendant
who fails to "plead or otherwise defend" in an action.
We note that this language encompasses more than a failure to
answer. Defendants argue that filing of the affidavit of
meritorious defense should not be considered "pleading or
otherwise defending"; but the statutory timing of filing,
the language of the court rule, and the purpose of the affidavits
combine to convince us that both plaintiffs’ and
defendants’ affidavits are part of the pleadings. MCR 2.112,
which includes the requirement that in a medical malpractice case
"each party must file an affidavit as provided in MCL
600.2912d, 600.2912e," is entitled "Pleading
Special Matters." MCR 2.112(L) (emphasis added). The term
"pleadings" includes only: (1) a complaint, (2) a
cross-claim, (3) a counterclaim, (4) a third-party complaint, (5)
an answer to a complaint, cross-claim, counterclaim, or
third-party complaint, and (6) a reply to an answer; thus,
defendants’ affidavits are part of the answer. MCR 2.110(A).
Without the affidavit, the answer is incomplete and does not
conform with the rules; under MCR 2.115(B), the court may strike
the answer and enter a default. In medical malpractice cases, the
purpose of the affidavits is to identify valid claims and
defenses meriting discovery. See VandenBerg v VandenBerg,
231 Mich App 497, 502; 586 NW2d 570 (1998). We therefore conclude
when a defendant fails to file an affidavit of meritorious
defense, that defendant has failed to plead. Thus, under MCR
2.603(A), the trial court was authorized to enter a default
against defendants.

Finally, we explore the appropriateness of
entering a default in this case. This is an issue of first
impression for this Court because the circumstances in each of
the prior relevant medical malpractice cases were slightly, but
significantly, different from the present case. In Wilhelm,
supra at 485, where the defendant failed to timely file the
affidavit, the trial court did not enter a default because
the plaintiff waived the issue by not raising it until the day of
trial. In VandenBerg, supra, the plaintiff filed the
affidavit some three months after filing the complaint, but
served the defendants with both the complaint and the affidavit
at the same time. This Court held that dismissal was not required
by the statute and was not appropriate because the defendants
suffered no prejudice. Similarly, in Dorris v Detroit
Osteopathic Hosp Corp, 460 Mich 26, 47-48; 594 NW2d 455
(1999), the plaintiff failed to file the required affidavit
before serving the defendant with the complaint. Our Supreme
Court held that dismissal without prejudice was proper because
the statute of limitations had not expired. The Court developed
the law further in Scarsella v Pollak, 461 Mich 547,
551-553; 607 NW2d 711 (2000), where it held the complaint alone
was insufficient to commence the plaintiff’s action and the
suit was time-barred because the affidavit was not filed before
the period of limitations expired. Although we apply the
principles from these cases to the situation at hand, we find
none of them directly analogous.

Defendants argue that this case is analogous toVandenBerg, supra, and that dismissal without prejudice is
appropriate. However, the defendants in a medical malpractice
case are not in the same situation as the plaintiffs. First, they
are not racing the statute of limitations clock; their interest
in prolonging the suit is very different from plaintiffs’
need to meet the statutory deadline. Second, the statutory
provisions and language applying to defendants is similar, but
not identical, to that applying to plaintiffs; for instance, the
Legislature did not grant defendants the right to extend the time
allowed. Third, to permit defendants to delay with impunity does
nothing to encourage the parties to explore the merits of the
case before trial. VandenBerg, supra at 502. The
cooperation of both parties is necessary for the effective
development of the meritorious issues; the plaintiff is not the
only party whose involvement is necessary to ascertain the
validity of the allegations made. While the focus in the past has
been on the intent of the Legislature to prevent plaintiffs
from bringing frivolous claims, the language of the statute is
equally strict in requiring defendants to present a valid
defense.

We therefore find that in each of these cases,
although default was a permissible remedy, the trial court
erroneously believed that it was required by statute to enter a
default and that it had no discretion to fashion an appropriate
sanction. Because the trial court did not exercise discretion in
entering the default and did not consider the possibility of any
other remedies, it erred in refusing to set aside the default. We
reverse its orders and remand for exploration of the issues of
setting aside the defaults for good cause and what remedies
should be ordered. We recognize that the trial court may
ultimately find default to be appropriate, but it may only reach
its conclusion after exercising its own discretion in the matter.
In selecting a sanction both appropriate and effective in
compelling compliance with the statute, the trial court may
consider the reasons for defendants’ delays, what other
actions defendants took to apprise plaintiffs and the court of
those reasons, any prejudice to plaintiffs resulting from the
delays, and any other factors relevant to the determination.

Reversed and remanded. We do not retain
jurisdiction.

/s/ William B. Murphy

/s/ Patrick M. Meter

McDonald, J., did not participate.

FOOTNOTES:

[1]MCL 600.2912d, despite its "good cause"
extension, likewise mandates the filing of the plaintiff’s
affidavit by use of the word "shall."